V.N.V. Ventures Co., Ltd., a company limited formed under the laws of Thailand ("Company"), is the owner and operator of the “Platform” which is comprised of www.vcliq.com and any related applications (including applications on mobile phones and devices (“Mobile Apps”)) and includes their respective internet-based services, features, content, and functionality (the “Service” or “Services”). Company and its licensors, suppliers, affiliates, agents, directors, officers, employees, representatives, successors, and assigns (referred to collectively with Company as "we", "us", or "our") offer the Platform to provide a communications service by which businesses (“Clients”) seeking photography services can connect with an individual (or individual acting through a business entity) seeking to perform such photography services (“Photographer”). For purposes herein, Client and Photographer are individually, a “User” and collectively, the “Users”.
These Photographer Terms and Conditions of Service (“Photographer Agreement”) are incorporated by reference into the Terms and Conditions (“Terms”). Each Photographer agrees to all terms and conditions of the Terms regardless as to whether referred to as a “Photographer” or “User”. This Photographer Agreement is intended to ensure that all Users have a positive experience when using the Platform and forms the basis of the contractual understanding between Photographer and us for any engagement to perform photography services for the benefit of Client.
2. DEFINITIONS AND GOVERNANCE
Capitalized terms that are not defined in this Photographer Agreement shall have the meaning ascribed to such term in the Terms. If a request of Company and a Client are in conflict, Photographer agrees that Company’s request shall control.
3. PHOTOGRAPHER SELECTION AND REVIEWS
In some instances, Clients may use the Platform to review photographer profiles to directly select a photographer to perform photographic services. Alternatively, a Client may ask us to first determine a group of photographers that meet the initial criteria of the Client from which the Client will subsequently seek a Photographer. Photographers should expect that selections will be based upon Reviews of Photographer in performance of previous photographic services, including without limitation, with respect to promptness in performing services, professional presentation of Photographer while performing services, an ability to deliver Work Product that conforms with the specifications of a photography services order (“PSO”), and the amount of time required to edit Work Product.
4. PHOTOGRAPHY SERVICES ORDERS
From time to time, Photographers may receive communications from the Service with respect to an opportunity to provide photographic services for a Client. Photographers shall be required to promptly agree to perform such services via the Service, although such response does not guarantee Photographer’s engagement. Any acknowledgement that Photographer has been selected to perform photography services will be accompanied by a PSO that may set forth, among other things, a job number, location, appointments, file naming requirements, the minimum number of photos and other specifications for the photography services including the Commissioned Photos/VDOs.
Photographer shall use best efforts to perform its services in accordance with the PSO and the Terms. The PSO may also set forth additional legal terms that apply to the photography services and by agreeing to perform the photography services Photographer is also agreeing to be legally bound by such additional terms. In the event of a conflict between the Terms and a PSO, the PSO shall govern but only with respect to Photographer’s services provided pursuant to that PSO.
5. ACCOUNT REGISTRATION
The Services available on, or through, the Platform are only intended for an individual Photographer (or an individual Photographer operating as a business entity) and are not to be used by more than one individual per Account. Our use of any personal information that you provide to us during the account creation process is governed by our Privacy Notice. Photographer must be at least 18 years of age, or the age of legal majority in Photographer’s jurisdiction (if different than 18), to obtain an Account. Photographer agrees to take full responsibility for maintaining the confidentiality of the Account user name and password, and for all activity that is generated by the Account. Accordingly, Photographer understands and agrees to be liable for any activity performed by anyone using Photographer’s Account, including, without limitation, any comments made, charges incurred or photography service commitments. Photographer must immediately notify us in writing of any unauthorized use of the Account or any other breach of security.
Photographer represents and warrants that all registration information provided in connection with accessing and/or using the Services is true, accurate, current and complete at the time of registration and undertake to update all such registration information if at any time during the use of the Platform or Services such information becomes untrue or inaccurate.
6. PHOTOGRAPHER PAYMENT TERMS
Photographers are responsible for setting the fees for each PSO and for additional photos ordered by the Client. The Company will charge the Client a Service Fee of 16% per PSO and 16% per each additional photo. The Company will facilitate a monthly payment to the Photographer’s nominated bank account or payout account the Photographer Fees for the PSO provided to the Client by the Photographer. For residents of Thailand the payment will be made after Withholding Tax 3% for residents and up to 15% for non-residents of Thailand. Company has sole discretion to act on behalf of the Client, and to not pay Photographer Fees, if the Client reports that the Photographer did not provide the service or the service is not adequately complete. This may include but is not limited to circumstances where a Photographer did not arrive to a booking or photos were of insufficient quality for use. After an independent review, the Company may decide at its sole discretion to issue a refund to the Client.
Photographers are responsible for all taxes associated with the Services.
7. INDEPENDENT CONTRACTOR AND ENGAGEMENT
Photographer agrees that, in the performance of services under this Photographer Agreement, Photographer shall at all times act as an independent contractor, and not as an employee or agent of Client or us. The services to be performed by Photographer are of the type and nature generally performed by Photographer in Photographer’s usual line of business or expertise. Nothing contained herein shall be construed to create a joint venture, partnership, association, or other affiliation between Photographer and User or a Client, it being specifically agreed that the relationship is and shall remain that of independent parties. We shall neither have nor exercise any specific control or direction over the particular methods by which Photographer shall perform the photographic services required. Photographer represents, warrants, and covenants that Photographer will perform all work in a good workmanlike manner in accordance with the highest standards of the photographic services industry. Photographer has obtained and at all times will maintain in good standing all licenses, permits or other qualifications required to perform the photographic services in any jurisdiction in which services are to be performed hereunder.
The services to be performed under this Photographer Agreement will be performed entirely at Photographer’s risk, and Photographer assumes all responsibility for the condition of tools and equipment used in performing such services.
8. COMMISSIONED PHOTOS/VDOS
Photographer shall upload the Commissioned Photos/VDOs to the Platform no later than the date set forth in the PSO or as agreed with between Photographer and Client. Each Commissioned Photo/VDOs shall be delivered in both a raw and .JPG file or VDO format that is in the pixel size set forth in the PSO. The .JPG file shall be edited, retouched, and processed form ready for publication. Such editing will include, without limitation, white balance correction, application of a standard filter and minor adjustments for overexposed or underexposed images. The subject matter of the Commissioned Photos/VDOs shall consist of those areas set forth in the PSO. Upon the request of a Client or us, Photographer shall perform, at no additional cost, retouch services and other post production of images as each of them may determine is necessary to meet Client’s specifications including those set forth in the PSO.
Upon the request of a Client or us, Photographer shall provide any and all works, images, tangible or digital images, sketches, VDOs, files and photos, including all related negatives, transparencies or digital files, whether copyrightable or not, that have been authored or conceived of or reduced to practice in the course of Photographer’s performance of the photographic services for Client, including without limitation, all embodiments thereof (e.g., Commissioned Photos/VDOs), and all intellectual property rights relating thereto (collectively, “Work Product”) to Client and us, or if not so requested promptly following written acceptance of the Commissioned Photos/VDOs, Photographer shall promptly irreversibly destroy all Work Product, including any remaining outtakes of photographic services that do not result in edited files delivered via the Platform as Commissioned Photos/VDOs. For the avoidance of doubt, Work Product shall be deemed to include any and all images and representations captured or rendered in or by any medium, format or method, all of which constitute Work Product.
Commission Photos/VDOs must meet the quality standards consistent with the PSO, as determined by the Client or Company in each of their sole discretion.
10. OWNERSHIP OF WORK PRODUCT
Photographer agrees that Client shall own all Work Product resulting from the photographic services performed by a Photographer and that all copyrightable works that constitute Work Product (including the Commissioned Photos/VDOs) shall be deemed to have been specially ordered or commissioned by Client and Photographer hereby perpetually and irrevocably assigns to the Client upon creation the entire copyright, including all rental and lending rights whether vested, contingent or future in the Work Product (including any associated intellectual property rights), and all rights, title and interest (including a right of action) in the Work Product upon its creation whether now known or hereinafter created to which the Photographer is now or may be in the future entitled by virtue of, or pursuant to, any of the laws in force in any part of the world and to hold the same to Client, its successors, assignees and licensees absolutely, for the whole period of such rights for the time being capable of being assigned by the Photographer together with any and all renewals, revivals, reversions and extensions throughout the world.
At the request of Client or us, Photographer shall provide all assistance and execute all documents to assign such rights to Client, to perfect Client’s ownership, and to protect Client’s rights, in the Work Product (including all works-in-progress). Notwithstanding anything to the contrary contained in this Photographer Agreement, we will ensure that Client grants to Photographer a sub-license to use, copy, reproduce, distribute, and create derivative works of the Work Product solely to perform retouching and post-production of the Work Product as requested by Client or us, as required by a PSO, and as may be reasonably necessary to conform the Work Product to the criteria of the Commissioned Photos/VDOs required by Client or us.
11. MORAL RIGHTS WAIVER
To the fullest extent permitted by applicable law, Photographer hereby irrevocably transfers and assigns to Client, and waives and agrees never to assert, any and all Moral Rights (as defined below) that Photographer may have in or with respect to any Work Product, during and after the term of this Photographer Agreement, and any contribution thereto, and hereby agrees that Client and its successors and assigns shall have all rights flowing from such assignment, transfer and waiver including, without limitation, for any and all past, present or future uses now known or hereinafter discovered and Photographer agrees to execute all further documentation, if any, necessary to implement or reflect this assignment, transfer and waiver. Notwithstanding the generality of the foregoing, Photographer hereby irrevocably and unconditionally waives the right to be identified as the author of the Work Products and waives all rights to which Photographer may be entitled by applicable law in relation to the title vested in Company and its successors and assigns and their respective uses of the Work Product.
“Moral Rights” mean any rights to claim authorship of a work, to object to or prevent the modification or destruction of a work, to withdraw from circulation or control the publication or distribution of a work, and any similar right, existing under judicial or statutory law of any jurisdiction in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a “moral right.”
Photographer agrees and acknowledges that Client is the intended owner of the Work Product, however, we as a service provider to Client shall have the right to enforce against Photographer any right created, transferred or assigned to Client under this Photographer Agreement or the Terms as if the same was created, transferred or assigned to us.
13. GENERAL CONDUCT AND PROHIBITIONS
When using the Service and performing any photographic services for the benefit of Client, a Photographer shall (i) make accurate representations about skills, experience, availability and qualification; (ii) set clear expectations about timing and any other details that are relevant to completing the photography services; (iii) be responsive to communications from Client or us, particularly those that are time sensitive, as those photographers first to respond are often the photographers engaged to perform the photographer services; (iv) act in a polite and courteous manner; (v) present yourself in a professional manner including with appropriate dress; and (vi) complete the photography services the Photographer has contracted to perform, and do so in a professional and timely manner.
To ensure a high-quality Client experience, Photographer agrees not to (i) cancel an engagement for photography services without prior communication and approval from a Client or us; (ii) cancel last minute as this provides a poor experience for Client; (iii) arrive late for projects or miss agreed-upon timelines; (iv) display unprofessional or unbecoming communication or behavior in any form; (v) contact Client regarding a negative review, accept a reduced payment or forfeit a payment in exchange for a positive review or to avoid a negative review; (vi) contact third parties related to or regarding Client including, but not limited to, Client’s friends, family, place of employment or attempt to damage Client’s reputation on social media platforms like Facebook, Twitter, LinkedIn and Yelp; (vii) disrespect the privacy and confidentiality of others, including owners and residents of properties that are the subject matter of Commission Photos; (viii) ignore communications from our support team; or (ix) violate the spirit of payments on the Platform in any way to facilitate an “off platform” payment.
In addition, Photographer shall not distribute, display or make available any Work Product to a third party, including without limitation, any representatives of the subject matter of Commissioned Photos/VDOs (e.g., lessee or occupants of a subject matter property). In no event shall the Work Product include any name, person or trademark unless Photographer has received any and all necessary written authorizations and releases for inclusion of the same.
14. LEGAL COMPLIANCE
Photographer will ensure full compliance with applicable laws and regulations. Photographer agrees not to engage in bribery or corrupt practices, more in particular not make or offer to make, in connection with this Photographer Agreement, any payment, gift or transfer of anything of value: (i) to or for the use or benefit of any government official or government employee (including employees of government-owned entities or corporations); or (ii) to any political party (including its officials or candidates); (iii) to any commercial party, person or entity or (iv) to an intermediary for payment to any of the foregoing, in order to induce the recipient to do or omit to do an act in violation of the lawful duty of such recipient, to obtain or retain business or to secure any improper advantage or to induce the improper performance of a relevant function or activity with regard to any activities on Photographer’s behalf as contemplated by this Photographer Agreement. Breach of this provision by Photographer entitles us (i) to terminate this Photographer Agreement with immediate effect and (ii) to be indemnified against any fine, penalty or claim the other may from time to time suffer as a result of such breach.
Without the prior written permission of Client and us, Photographer shall not display the Work Product (including any Commissioned Photos) for personal promotion. Should Client or Company grant such written permission, any Work Product used shall contain the watermark or copyright noticed required by Client or us.
16. REPRESENTATIONS AND WARRANTIES
Photographer represents and warrants to Client and us that, (i) the Work Product is Photographer’s original work and are not copies of any existing works, (ii) Photographer is not aware of any claims challenging the authorship of the Work Product, Photographer’s rights in the Work Product, or the legality of the Work Product or their content, (iii) to the best of Photographer’s knowledge, the performance of its respective obligations under this Photographer Agreement will not violate any agreement between any person, firm or organization or any law or governmental regulation, (iv) Photographer is not subject to any economic or trade sanctions or equivalent issued by national, foreign or international governmental bodies or authorities and (v) Photographer will perform the services hereunder in (a) a professional and workmanlike manner with due care and diligence and to the highest standards of quality as is customary in the photographer industry; (b) compliance with the terms and conditions of this Photographer Agreement and the PSO including any specifications including therein; and (c) accordance with all applicable professional standards for Photographer’s field of expertise.
17. PHOTOGRAPHER FEE
Photographer’s total compensation for performing the photography services shall be the Photographer Fee set forth in the applicable PSO. We will cause the Photographer Fee set forth in the PSO to be remitted to Photographer in the time period set forth in the PSO. If such payment is conditioned upon acceptance of the Commissioned Photos/VDOs, Photographer agrees and acknowledges that Client and Company reserve the right to accept or reject Commissioned Photos/VDOs at their respective reasonable discretion based upon conformance with the criteria set forth in the PSO. In no event shall Photographer be entitled based on photographer services rendered hereunder to any benefits and shall not be entitled to participate in any benefit plan of a Client or us.
Photographer may be required to establish an account with the third party payment service provider (“PSP”) we have retained to facilitate payments to photographers. In establishing such account, Photographer will be required to register and agree to any applicable legal terms that are required by the PSP. Photographer represents to us that Photographer has reviewed and agreed to all legal terms of the PSP. Please note that we are not a party to any agreement of Photographer with the PSP and as such we do not have any obligation or liability under such agreement.
All payments of Photographer Fee will be made in the local currency of the Photographer’s domicile or registration country with the PSP after taking into consideration any rate of currency exchange or PSP fees.
Photographer agrees and acknowledges that an appointment to perform photography services pursuant to a PSO previously confirmed by Client (“Scheduled Appointment”) may be cancelled at any time. If a cancellation by Client occurs more than 24 hours prior to the Scheduled Appointment then Photographer will not be entitled to a Photographer Fee, but the Photographer will be provided a first right of refusal for the rescheduled Scheduled Appointment, if any. Photographer, however, will be entitled to receive a payment equal to 50% of the Photographer Fee if a cancellation by Client occurs less than 24 hours prior to the Scheduled Appointment, or 50% of the Photographer Fee if (i) Photographer timely arrives at a Scheduled Appointment and is prohibited from performing the photographer services by the Client or a representative of the subject matter premises, or (ii) Photographer timely arrives at a Schedule Appointment and the Client or a representative of the subject matter premises has not arrived after 30 minutes. Photographer shall be entitled to receive the aforementioned payments even if the Scheduled Appointment has been rescheduled and Photographer is to perform the pertinent photographer services.
We may terminate this Photographer Agreement at any time and for any reason or no reason upon written notice to Photographer. Upon termination of this Photographer Agreement and unless otherwise agreed in writing, Photographer shall promptly cease performance of any services performed pursuant to a PSO and promptly deliver all Work Product, including works in progress. Upon termination of this Photographer Agreement, we shall pay Photographer any pro rata amounts that are due and payable for Commissioned Photos/VDOs prepared by Photographer prior to the date of termination, unless we terminated the Photographer Agreement for Photographer’s breach.
Notwithstanding the generality of our foregoing right to terminate this Photographer Agreement, the following shall be grounds for immediate termination by us of this Photographer Agreement and Photographer’s participation in the Service: (i) impersonating any other person or falsification of identity; (ii) sharing login credentials with any other person; (iii) not performing the work in a manner reasonably deemed to be professional; or (iv) creating and operating more than one Account, under any circumstances.
20. CONFIDENTIAL INFORMATION
“Confidential Information” means confidential and proprietary information of Client and us, whether or not designated or labeled as confidential or proprietary, in written, graphic, verbal or machine readable form, including, without limitation, technical data, trade secrets or know-how, research, product plans, products, services, suppliers, customer lists and customers, prices and costs, markets, software, developments, inventions, laboratory notebooks, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, licenses, finances, budgets or other business information, but does not include information which (i) becomes generally available to the public other than by breach of this Photographer Agreement by Photographer; (ii) is disclosed to Photographer by a person who is not under an obligation of confidence to Client or us, as the case may be; or (iii) is required to disclose pursuant to a judicial, arbitral or governmental order or other compulsion or operation of law, provided that Photographer, to the extent not prohibit by law, provides Client or us with prompt written notice of such order, cooperates with Client and us to seek (and comply with) a protective order or other limitation of disclosure, and discloses no more Confidential Information than is strictly necessary by the terms of such order.
Photographer shall preserve the confidentiality of Confidential Information from unauthorized use or disclosure using appropriate safeguards and not less than a reasonable standard of care. Photographer shall use the Confidential Information only to carry out its obligations under this Photographer Agreement. The obligation to maintain the Confidential Information in confidence shall survive indefinitely despite the termination or expiration of this Photographer Agreement. Photographer acknowledges that we have received and in the future will receive from third parties said third parties’ confidential information (including from a Client or a Client’s customers), subject to a duty to maintain the confidentiality of such information and to use it only for certain limited purposes. Photographer will treat such information as Confidential Information hereunder and shall not, directly or indirectly, use, make available, sell, disclose or otherwise communicate to any third party, other than in the assigned duties and to the extent needed to be known, as applicable, any such confidential information.
Photographer understands and agrees that a breach of this section may cause irreparable harm to Client or us, and monetary damages may be inadequate to compensate Client or us. Any breach by Photographer of this section shall entitle Client or us to seek equitable relief, including but not limited to specific performance or injunctive relief without requirement of bond, in addition to remedies otherwise available at law or in equity.
21. TRADEMARK INFORMATION
In order to ensure that the public can recognize that a Photographer offers photography services on the Platform, Company grants to each Photographer, subject to the terms and conditions of this Terms, a nonexclusive permission to display the Vcliq trademark (the “Trademark”) only on and in connection with the offering of photography services by Photographer solely as authorized by this Terms. A Photographer may only use the Trademark in the form, color and manner specified by us and a Photographer must display its own trading name in the proportions specified by Company. Any materials bearing the Trademark must first be approved by Company in writing. You agree to immediately stop any use that is not expressly permitted by this Section. The foregoing permission is personal to a Photographer and is not assignable, sub-licensable or transferable for any reason or in any manner. Any attempts to do so will be null and void and will permit us to terminate the aforementioned grant. Except as expressly provided in this Section, a Photographer may not directly or indirectly (i) use the Trademark in any manner on any goods or services of any kind other than to denote that Photographer offers photography services on the Platform; (ii) use any trademark or trade dress of us or our affiliates other than the Trademark; (iii) combine the Trademark with any other product, design, name, symbol, or trademark; or (iv) adopt, use, register or attempt to register the Trademark as a trademark, service mark, design, trade name, copyright, corporate name, domain name, social media identifier or as part thereof. Except for the permission expressly granted in this Section, we do not assign, license or grant, and nothing in these Terms is intended to be or will be construed as an assignment, license or grant of any right, title, or interest in the Trademark or in any copyright, design, trademark, trade dress, domain name, social media user name, proprietary information, trade secret, know-how, patent, technology, know-how or other intellectual property, or other property right.
The Users have no right to transfer to third parties any of the rights relating to the Trademark granted by us under these Terms. You will not register the Trademark or any trademark, copyright, design, trade dress, domain name, social media user name or other intellectual property or other property right that contains the Trademark. You have no right to prosecute any claims against any party for infringement of the Trademark.
22. LINKING TO THE PLATFORM
Subject to the terms and conditions of this Photographer Agreement, you are permitted to link to our homepage for the Platform or any page you may have created as a Photographer to showcase your photography services. You may not link to the Platform in a manner that may damage our reputation or take advantage of it or suggest an approval or endorsement without our prior written consent. You may not establish a link from any website that is not owned by you. You agree to cooperate with us in causing any unauthorized linking immediately to cease. We reserve the right to withdraw linking permission without notice.
Photographer shall defend, indemnify, and hold harmless us and our affiliates (including, without limitation, V.N.V. Ventures Co., Ltd.) and their respective customers (including Client), and each of their directors, officers, employees, agents and customers (including, without limitation, Client), from and against all third-party claims, costs, liability, loss, damages, expenses, or judgments arising out of or relating to (i) any breach of this Photographer Agreement by Photographer, (ii) any alleged infringement by Photographer or the Work Product of the intellectual property rights of any third party, (iii) Photographer performing services and creating the Work Product at the subject matter properties including, without limitation, claims for damages caused by Photographer on a subject matter property; or (iv) any alleged negligence, unlawful or tortious act or omission, or willful misconduct by Photographer during the term of this Photographer Agreement. Photographer’s obligations under this section shall survive termination or expiration of this Photographer Agreement.
24. EXPENSES AND REIMBURSEMENT
Unless expressly set forth in a PSO, we shall not and a Client shall not have any obligation to pay for any out of pocket expenses incurred by Photographer in connection with the photography services, including, without limitation, any transportation, materials or service costs of Photographer.
Photographer shall maintain continuous insurance coverage that is reasonable and adequate to protect against all applicable risks and to enable it to meet its obligations created by this Photographer Agreement and by law. Upon our request Photographer shall promptly provide proof of such coverage to Client within fifteen (15) business days of the date hereof.
If, for any reason, Photographer feels unsafe or uncomfortable when performing photography services, Photographer should professionally and politely leave the premises and remove yourself from the situation. If necessary, Photographer should contact the local law authorities first. A Photographer should not complete any tasks that would put Photographer at risk financially or physically. Photographer shall follow all guidelines, laws and restrictions for any sites or venues Photographer visits or utilizes when performing photographic services.
Certain vetting methods may be used in connection with the Service, including a verification of identity of Users and a criminal background check for Photographers. Such vetting methods shall be in accordance with applicable law and performed by third party service providers. You hereby give your consent for us to have performed such verifications and background checks in the manner and frequency as we deem reasonably necessary so long as such is performed in compliance with applicable law. Even though we may use such vetting methods, we cannot unequivocally confirm the identity of each User or Photographer. As such, we do not assume any liability for the accuracy or reliability of such vetting methods or any information provided through the Service.
28. GOVERNING LAW
This Photographer Agreement will be governed by and construed in accordance with the laws of Thailand and the parties submit to the non-exclusive jurisdiction of the courts of Thailand to hear any disputes, which arise out of, under, or in connection with this Photographer Agreement. For purposes of clarity, the Dispute Resolution provisions contained in the Terms also applies to this Photographer Agreement.
29. THIRD PARTY BENEFICIARY
Photographer agrees and acknowledges that Client is a third party beneficiary of this Agreement, entitled to enforce the terms hereof as if a party hereto.
We may assign this Photographer Agreement including any the terms and conditions incorporated by reference, in whole or in part, at any time with or without notice to you. You may not assign this Photographer Agreement.
This Photographer Agreement is incorporated in and form part of the Terms. Capitalized terms not otherwise defined shall have the meanings set forth in such Terms.